Myanmar at the HLP Crossroads: - Displacement Solutions

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27Myanmar at the HLP CrossroadsANNEX 1:6 A Brief Historical Overview of theHLP Legal Framework of MyanmarThe current legal framework originates with laws that were put in place during the British colonial period, many ofwhich apparently have never been repealed nor necessarily used in practice. (15) Starting with the Caste DisabilitiesRemoval Act (1850), which banned laws and practices that impair property rights or impact the rights of inheritancebased on religion or caste status, these laws establish a wide range of HLP rights and obligations along with administrativeprovisions for implementation and enforcement. The development of the current legal framework can beroughly divided into five periods: the colonial era, starting in 1850 and concluding a century later with Burmese independencein 1948; the early years of post-colonial independence, from 1948 to 1962; the “socialist” period of militaryrule, from 1962 to 1988; the latter period of military rule from 1988 to 2009; and the current period of acceleratingreform and democratization that began in 2009.For over 800 years, from the 11th to 19th centuries, the people of central Burma lived under an absolute monarchy.During this period, the social structure of Burma was expressed in legal texts (dhammathats) interpreted and appliedby specialist lawyers (shene). The annexation of Burma by the British began in 1825 and continued for the next 62years. By 1886, all of Burma was incorporated into the British Raj and was administered as a province of India. TheBritish implemented complete legal, governmental and administrative reform. All Burmese law was replaced withthe then current Anglo-Indian law. The Privy Council was instituted as the highest court in Burma and when muchof the common law was codified in India, it was similarly adopted in Burma and compiled into the 13 volumes of theBurma Code. In addition to the Burma Code and common law, and akin to the policy enacted in British India, respectivereligious laws (Buddhist, Muhammadan and Hindu) were to be retained in the area of “succession, inheritance,marriage or caste or any religious institution”. This position was formalised in the Burma Laws Act (1898).In 1850, the initial Burmese law addressing a component of HLP rights was adopted. As the first of a series oflaws designed to remove certain discriminatory results from the application of religious laws, the Caste DisabilitiesRemoval Act (1850), sought to ensure that: “Any law or usage that inflicts the forfeiture of property rights or impairsrights of inheritance by reason of an individual renouncing or having been excluded from the communion of any religion,or being deprived of caste, shall cease to be enforced by law”. In 1856, the Hindu Widows’ Remarriage Act,ensured that Hindu widows would be capable of contracting a second valid marriage and that the offspring of suchmarriages would be considered legitimate and capable of inheriting property. The subsequent Married Women’sProperty Act (1874) provided that the wages, earnings and property of a married woman were to be considered herseparate property. Further, a married woman was entitled to effect an insurance policy on her own behalf, independentlyof her husband; maintain a suit for the recovery of her separate property and have the same remedies andliabilities, both civil and criminal, as if she was unmarried.Several decades later, a variety of similar laws were approved. The Hindu Disposition of Property Act (1916)removed “certain disabilities” in the disposition of property by Hindus. The Act provided that “no disposition ofproperty by a Hindu, whether by transfer inter vivos or by will, shall be invalid by reason only that any person forwhose benefit it may have been made was not in existence at the date of such disposition”. The Hindu Inheritance(Removal of Disabilities) Act (1928) designated that no person governed by Hindu law, “shall be excluded frominheritance by reason of any disease, deformity or physical or mental defect”. The Hindu Gains of Learning Act(1930) provided a uniform rule as to the rights of a member of a Hindu family to property acquired through meansof their “learning”. The Specific Relief Act was approved in 1877 to govern the law related to specific relief of theCourts. The Act covers the recovery of possession of property (movable and immovable property); the specificperformance of contracts; the rectification of instruments; the recession of contracts; the cancellation of instruments;declaratory decrees; the appointment of receivers and the enforcement of public duties.(15) The full texts of all Myanmar HLP laws, both extant and repealed through 2009, can be found in English in Leckie and Simperingham, Housing,Land and Property Rights in Burma: The Current Legal Framework, Displacement Solutions/HLP Institute, 2009.
Myanmar at the HLP Crossroads 28Through the adoption of progressive land and revenue laws, the British created, for the first time, a legal arrangementrecognising private ownership of land as well as a system of land revenue tax collection. Due to the separateannexation of Lower and Upper Burma separate legislation was passed to suit these different jurisdictions. TheLand and Revenue Act (1879) was the first major land law enacted in Burma and governed the acquisition of landrights for private persons as well as the procedures for assessment and collection of land revenue taxes. Followingthis legislation, the Upper Burma Land and Revenue Regulation (1889) was adopted and applied similar principlesof land ownership and land revenue tax collection. Under these laws, all lands in Burma were for the first timedivided into either “State land” or “non-State land”. The Acts did not apply to land within the limits of any towns, norto reserved forestry, fisheries land, military cantonments or specified religious sites. Provision was made for theaccrual of land rights (ordinarily attached to a calculated period of possession of land). Further, a landowner wasdeemed to have a permanent heritable and transferable right of use and occupancy in his land (subject to paymentof revenue, taxes and the reservation in favour of the government of all mines and mineral products).The creation of a system of land revenue tax collection was complementedwith a system of cadastral surveying and land registration. The cadastralsurveys distinguished the following classes of land: land under grant (longand medium grants); leasehold lands; temporary lease lands (seasonalonly); new colonies (newly opened lands); inundated and ‘island’ landsfound only in riverine areas (lands submerged under rivers during Monsoonseason, which re-appear when river water recedes). The land and revenuearrangements instituted by the British led to far greater state involvementwith the land sector as well as far greater private ownership of land than hadpreviously been the case, in effect, usurping longstanding customary landusages. Further, the implementation of land and revenue arrangements aswell as the practice of the British led to taxes on land becoming the singlelargest source of state revenue.The Transfer of Property Act (1882) governed the law relating to thetransfer of property (movable and immovable), including, sales, mortgages,charges, leases, exchanges and gifts. Although it appears that this Act isstill technically in force, many of the relevant HLP provisions have beensuperseded, primarily by the Land Nationalisation Act (1953), though thisAct was repealed in accordance with the Farmland Law adopted in 2012.The Transfer of Property Act complements the position enshrined in theLand and Revenue Act that a landowner had a permanent heritable andtransferable right of use and occupancy in his land.The Lower Myanmar Town and Village Act (1899) governs land rights of private persons in towns and villages(in contrast to the Land and Revenue arrangements that cover land outside of towns). The Act provides that thefollowing rights to land accrue for hereditary land: the right to keep under occupant control (to live and to dwell onthe land); the right to cultivate; the right to mortgage; the right to sell and the right to inherit. For Government lands,people have rights to keep under occupant control, cultivate and inherit. The Act states that “no rights against theGovernment shall be deemed to have been or shall hereafter be, acquired by any person over any land in any townor village, except as provided under this Act”. Similar to the Lower Burma Land and Revenue Act, land ownershipis mostly based on possession, again, normally attached to a calculated period of possession. The Act provides thatlandholder’s rights cease after two years of abandonment, and also covers eviction procedures from any unauthorizedpossession and use of state land.Photo byAndrew Scherer/ DisplacementSolutionsThe Partition Act (1893) governs the law relating to the partition of immovable property. Specifically the Actprovides that where a decree for partition has been made and by reason of the nature of the property, or the numberof shareholders, a division of the property cannot be reasonably or conveniently made, the Court may direct a sale ofthe property and a distribution of the proceeds.The very important Land Acquisition Act (1894) empowers the state to acquire land where it is needed for anypublic purpose. The Act provides for the relevant procedures, including the required notice to be given, proce-
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Myanmar at the HLP Crossroads: - Displacement Solutions

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